The Critical Legal Studies Movement: Another Time, A Greater Task

By Roberto Unger

Critical legal studies is the most important development in progressive thinking about law of the past half century. It has inspired the practice of legal analysis as institutional imagination, exploring, with the materials of the law, alternatives for society. The Critical Legal Studies Movement was written as the manifesto of the movement by its central figure. This new edition includes a revised version of the original text, preceded by an extended essay in which its author discusses what is happening now and what should happen next in legal thought.

• Language: English
• Publisher: Verso Books
• Release date: Mar 3, 2015
• ISBN: 9781781683415

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Index

PART I

Another Time,

A Greater Task (2014)

ONE

The Context, the Movement, and the Book

The Context

The Critical Legal Studies Movement is a manifesto for a movement of ideas in legal thought. This introduction to a new edition of the original book has two aims. Its first purpose is to place both the movement and the book in context and to reconsider both the book and the movement in the light of subsequent developments. Its second goal is to look to the future, and to consider the vocation of legal thought now.

The critical legal studies movement represented, both by design and in fact, a forceful intervention in the history of legal ideas in the United States and more generally in the world. The meaning as well as the importance of such an intervention depends on what follows it. I address both the movement and the book as a step in the development of an unfinished agenda of ideas about law.

A central claim made explicitly in this introduction and implicitly throughout this book is that the potential of law and legal thought to inform the self-construction of society under democracy remains largely untapped. Surrender to the constraints narrowing our vision of what law is and can become undermines our ability to make use of this potential.

In addressing both the recent past and the present vocation of legal thought, we face a difficulty that the social sciences and humanities confront in far smaller measure: the national character of law. The critical legal studies movement was an episode in American life. Americans were chiefly responsible for launching it. It addressed American circumstances, and embraced attitudes in the categories of a discourse that, if not solely American, was expressed in terms that Americans might readily understand and find appealing.

Nevertheless, the issues at stake in the past and future contexts that the book and this introduction address are not peculiar to the United States; they arise throughout the world. A circumstance analogous to the one in which the critical legal studies movement emerged has occurred in Europe and in the civil-law countries. The precursors and sequels of the movement and its adversaries and allies have counterparts there, often under different labels. The failure to remain faithful to the greater vocation of legal thought is a worldwide failure, with global consequences.

From the outset, I viewed the critical legal studies movement as a contribution to a worldwide change in the direction of legal thought. It is in that same spirit that I here reconsider the events and ideas with which this book deals. My interest is less in what is distinctively American than in what has significance for legal thought around the world.

Let the reader correct for the specialness of the American situation and the American words. Let him give the argument its most inclusive reach. In this effort, I shall help him by addressing the movement and this manifesto in a manner designed to emphasize what is of worldwide rather than of merely provincial significance in the situation and in the future of legal thought.

Critical legal studies was never intended to generate a permanent genre of legal writing, or to take its place among a standing cast of schools of legal theory. It was a disruptive engagement in a particular circumstance. Consider now the context in which it appeared, first from the standpoint of its relation to the then dominant practice of legal analysis and second from the perspective of its connection with the political situation that it faced in the United States and in the world. Let me call these two perspectives the internal and the external contexts, if by internal we might mean what has to do with law and legal thought and by external what regards the condition of society. We can in turn distinguish methodological and substantive aspects of the internal point of view: those that have to do with ways of thinking about law and those that concern the content of law.

The practice of legal analysis that the movement found in command of legal thought represented law as a repository of impersonal principles of right and of policies responsive to the public interest. It interpreted each fragment of law by attributing purposes to it. It described those purposes in the idealizing language of policy and principle. Call this approach to law, as it was called by some of its theoreticians, the method of reasoned elaboration.

According to this method, law was to be interpreted in the best possible light—that is to say, the light least tainted by the powerful interests that were likely to have exerted the predominant influence in the political contest over the content of law, especially through legislation. By putting the best light on the law, the professional interpreters of law, within or outside adjudication, could, according to this view, improve the law. They could become the agents through whose efforts the law works itself pure, even in an age in which legislation had long come to overshadow law made by jurists, whether holding judicial office or not.*

The major schools of jurisprudence differed in how they proposed to ground the impersonal principles and public-regarding policies that were supposed to control the interpretation of law. For one school, these policies and principles were to be couched in a political theory of rights; for another, in a normative view of efficient resource allocation; and for yet another in a conception of the methods suitable to each agent in the legal system—legislators, administrative agencies, and private orderers, as well as courts.

Regardless of these theoretical differences and disputes, the reasoned elaboration of law—purposive, generalizing, and idealizing—made the same crucial assumptions. To a large extent the guiding conceptions of policy and principle that enabled the interpreter to make sense of law and that guided him in his practical work were supposed to be already latent in the extant law, waiting to be revealed by the legal analyst.

To affirm that the story of policy and principle was fully there would be to make an incredible claim. How could the political struggle over the content of law, especially as organized and legitimated by democracy, produce if not a system then at least a series of fragmentary normative conceptions, addressed to each domain of law and social practice and capable of retrospective expression in the language of magnanimous policy and neutral principle? Those who had struggled in politics over the content of law in the name of clashing interests and visions would have acted as the unwitting servants of an immanent logic of social evolution. Had they done so, the pretense of democracy to subject the terms of social life to collective self-determination would be discredited.

It was thus necessary to claim that the ideal element in law was only incompletely expressed in established law. The judge or non-judicial jurist had to complete this ideal element through the proper exercise of his responsibility to advance, case by case, the reasoned elaboration of law.

To suppose, however, that the narrative of policy and principle already contained in the law was at best inchoate or contradictory, and that most of it would have to be an invention rather than a discovery, would be to undermine even a relative distinction between making and applying law. It would be to grant the interpreter a measure of revisionary power that no sovereign, much less the people and their representatives under democracy, would be likely to accept. It was thus indispensable to assume that the story of policy and principle was largely, but not completely, latent in the established law. It conflicted with only a limited portion of the received understanding of law. At any given time the practitioner of reasoned elaboration would need to reject only a limited portion of the received understandings of law; the exercise of revisionary power would remain moderate. Nothing, however, seemed to guarantee this happy balance, although everything in the assumptions of the dominant practice of legal analysis required it.

What made it seem less unlikely that the content and character of law would support these extravagant expectations was the unquestioning acceptance of the basic institutional arrangements for the organization of the market economy, of democratic politics, and of civil society outside the market and the state. The arrangements of social life, expressed in the details of the law in force, could then be seen as the seat of a higher scheme of social organization, made explicit in the ideas and arguments of the jurists. The proponents and theoreticians of the method of reasoned elaboration presented it as the outcome of a rebellion against nineteenth-century doctrinalism; it was, instead, its disguised continuation.

The first task of the method of reasoned elaboration was to deal with a reorganization of substantive law in the mid-twentieth century. A new body of public law, governing the public and regulatory activity of government, came to be superimposed on a largely untransformed corpus of private law. Such changes as took place in private law could easily be represented as the outcome of a continuous evolution.

As a result, legal thought could conceal from itself the full significance of one of its most important analytical achievements: the discovery of the legal indeterminacy of the idea of a market economy. At each turn in the translation of abstract ideas about the market into specific institutional arrangements, it had become apparent that there were choices to be made. It was impossible—so the cumulative work of both practical lawyers and legal thinkers had demonstrated—to make such choices by inference from the abstract conception of a market economy. They inevitably involved choosing among competing visions and interests.

The relative stability of private law worked to strip this discovery of its significance. It perpetuated, in direct contradiction to the thesis of the legal indeterminacy of the market, the idea that certain varieties of private property and contract were the natural and necessary legal basis of a market economy, with limited scope for variation. The same way of thinking could then easily be applied to democracy and to civil society as well: they, too, were claimed to have a natural and necessary institutional form.

The proponents and historians of the style of legal analysis against which the critical legal studies movement revolted liked to describe it as a revolutionary break with the doctrinal formalism of the nineteenth century. In fact, the purposive, policy-oriented, and principle-based style of legal reasoning, the method of reasoned elaboration (which, in a later book, I called rationalizing legal analysis), represented a close continuation of the analytic and argumentative practice that it claimed to have repudiated. It loosened or weakened rather than replaced each of its crucial assumptions and commitments, retreating to what seemed to be more defensible ground.

The self-appointed central task of nineteenth-century legal science had been to work out what it took to be the inbuilt legal content of a type of social, political, and economic organization: notably, the legal regime of a free society. It was a conception that conservative jurists shared with the necessitarian social theories of the same period, even those, like Marxism, that saw the prevailing regime as destined to be superseded. According to this typological idea, the established institutional and ideological order, expressed in law, is an indivisible system, with inherent legal substance, not just a loose and contingent amalgamation of compromises, impositions, and accidents. It has both an institutional and an ideological logic. For the jurist, this logic was most clearly revealed in the basic categories of private law, especially the law of contract and of property. Public law was to be evaluated chiefly by the standard of its ability to support, or of its power to subvert, these private rights.

When legal science was driven, even against its inclinations, to recognize the legal indeterminacy of the market, it undermined its own typological method. The contradiction was resolved in practice by failing to press the idea of such indeterminacy to its conclusion: the exploration of alternative ways to organize production and exchange. Instead, indeterminacy served as an invitation to strike a balance among competing interests in the development of legal doctrine.

The theory and practice of the purposive, policy-oriented, principle-based style of legal argument that became ascendant in the second half of the twentieth century avoided any explicit embrace of the typological notion. Its advocates preferred to misrepresent the earlier legal-analytic practice as a superstitious attempt to infer the right answer to every legal question from a gapless system of rules by the use of a quasi-deductive method of inference.

The characteristic strategy of the new approach was to distance itself from the heroic assumptions of the typological view without defying them. The practice of reasoned elaboration made it possible to continue treating the law as a system. Underlying the system of legal rules, standards, policies, and principles was the institutional and ideological regime of society itself, represented as a flawed approximation to an intelligible and defensible plan of social life. The continuity of that plan and its expression in the details of the law, as well as in the guiding policies and principles, encouraged the jurist to persist in his effort to show that law is something more than ephemeral conflict and compromise among clashing interests and visions. If the result of this exercise was not the typological approach of nineteenth-century legal science, it was the closest approximation to this approach that had come to seem credible.

The affinity between nineteenth-century legal science and the new practices of reasoned elaboration of law becomes ever clearer when we consider the relation between the contrasts that were decisive for each of these two moments in the history of legal thought. For nineteenth-century legal science, the organizing contrast distinguished good, hard law with respect to the distribution of advantage from bad, soft, politicized law. Good, hard law was the impersonal law of coordination, supposedly embodied in the system of private rights, especially of contract and property. Respected in its purity, it would remain innocent of distributive consequences. The chief task of public law was to maintain an environment in which the integrity and the neutrality of the regime of private rights had the best chance of being upheld.

In the idiom of American constitutional law, this contrast is derided as Lochnerism: the superstitious invocation and constitutional entrenchment of a natural private order as a bar to the regulatory and redistributive initiatives of an activist government. Its core conception has survived, however, in vestigial form in any number of doctrines that are admitted without complaint to the stock of contemporary notions in good standing. Among these vestiges, to stay with the American setting, is the state-action doctrine, professing to restrict constitutional principles to situations that government has been complicit in making. It thus draws a distinction between social situations that are assumed to be pre-politically existent and situations that have been shaped by politics. That distinction was the essence of the contrast that the putatively more advanced legal thought of the later period claims to have repudiated. No situations in society are somehow just there, apart from politics and governmental power.

In this later period, the controlling distinction became the contrast between law as an embodiment of impersonal principles of rights or of policies responsive to the collective interest and law as ad hoc deals, or truce lines, among clashing interests and ideologies. From law as deals, no intelligible and defensible plan of social life, no matter how fragmentary, could be expected to result. The conception of law as the outcome of an endless series of episodes of conflict and compromise among interests and ideologies that had mobilized to secure influence over legislation was widely regarded as an acceptable understanding of law in the setting of legislative politics. Yet it was commonly rejected as a basis for the professional interpretation of law, except in special, even extreme circumstances. The reasoned elaboration of law after the fact, both within and outside adjudication, began by representing law in the disinterested language of policy and principle.

The key element in this distinction, and the one that most intimately connected it with the contrast between law as neutral coordination and law as politicized redistribution, was devotion to an idea of reason in history: a form of reason that, under the tutelage of the jurists, could exhibit the law as a coherent and perfectible scheme of collective life. It was thus yet another of a long series of reinventions of the practice of legal doctrine, aggressively contrasted by its theoreticians and practitioners to a view of law as simply the will of the sovereign. Under democracy the people are this sovereign.

The idea that there exists no such rational plan working itself pure through the cumulative practice of legal doctrine was denounced as legal nihilism. It was so denounced even though there was nothing either nihilistic or radical in the conventional, conservative approach to law, expressed in the vocabulary of interest-group pluralism, as ad hoc contest and compromise. Nevertheless, the legal outcome of such compromises and contests could not be plausibly represented as an evolving rational plan, suitable for explication and refinement by the jurists. The denial by the practice of reasoned elaboration of irrepressible conflict in the law shows the continuity between this approach to legal analysis and the doctrinal formalism that it misrepresented and claimed to have replaced.

From the new method there resulted the same evils that had beset its predecessors. The first such evil was mystification: the representation of law as an approximation to a prescriptive system, or a set of systems, in each domain of legal doctrine and social practice. The practical consequence was radically to understate variety and contradiction in the legal materials. It was to marginalize solutions and arrangements diverging from the predominant models in each area of law. Among such models are the unified property right and the bilateral executory contract. Each of the suppressed and understated anomalies might be developed into an alternative way of organizing the whole field.

The second such evil was usurpation of inordinate power by the jurists, to the detriment of democracy. They found the authority for their usurpation in the pretense of discerning the hidden rational script of policy and principle in the seemingly spiritless and accidental matter of the law. However, they could not plausibly claim to find the script all there, ready-made. For how could law, produced through conflict among interests and among ideologies, come to look, after the fact, in the hands of its professional interpreters, as if a single mind and a single will had conceived it? And if these apparent differences of interest and ideology paled in comparison to what the clashing positions had in common—a consensus thick and robust enough to generate the policies and principles guiding the interpretation of law, yet unrecognized by the political agents themselves—how could we take the claims of democracy seriously? The hidden script of policy and principle needed therefore to be only incompletely latent in the law: latent enough to exempt the jurists from seeming to fabricate it entirely themselves. The missing part is the part that they would complete, in the exercise of their proper role of putting the best face on the law: the face least beholden to self-serving class or factional interest and most responsive to the common good or to impersonal right.

The third such evil was the most important. The other two matter chiefly because they contribute to it. It is the inhibiting spell that is cast by the method of reasoned elaboration, as it was cast by earlier practices of legal analysis, on the most hopeful mechanism of social change through law: the dialectic between reshaping our institutions and practices and reinterpreting our interests and ideals. The quickening of this dialectic is the opposite of a practical nihilism; it is the chief device by which we can hope to master the established structure of society rather than allowing it to master us.

Both the earlier and the later doctrinalism committed this evil by making the same wager. Their implicit message was: jurists are priests, not prophets. Let us make the best of what we have, and let us do so by imagining the established law to be purer, by our lights, than it in fact is. Let us diminish the quota of self-dealing and unresolved conflict in the established rules and doctrines, the better to increase, under our watch, the purchase of public-regarding reason on the content of law.

It was this approach to law, with its multiple evils and its unjustified claim to have broken with the earlier doctrinal formalism, that the critical legal studies movement found preeminent in legal thought when it appeared in the United States in the 1970s. Already then the method of reasoned elaboration, or rationalizing legal analysis, had begun to be promoted throughout the world as the advanced and indispensable successor to what was denounced as doctrinal formalism and as the responsible alternative to the extreme forms of legal skepticism disseminated in the course of the twentieth century. The two most influential seats of this method—the United States and Germany—became the chief bases from which it was exported and promoted to the rest of the world. The older doctrinal method had retained its influence in that rest more than it had in the United States or in many Western European countries. As a result, reasoned elaboration was often received there as a liberation from an inherited and long fossilized practice of legal doctrine.

However, it was a false freedom that the defenders of reasoned elaboration offered. The vices of this practice of legal analysis, especially its antagonism to institutional imagination in law, were already damaging in its North Atlantic home ground. They proved calamitous when carried to countries in which even the most basic advances toward democracy and socially inclusive growth required institutional innovation. It was not by the light of the discredited ideological abstractions of the past two centuries, such as the ideas of capitalism and socialism, that these societies could guide their steps. It was rather by enlisting established small-scale institutional variations, expressed in the details of law, in the effort to develop larger-scale institutional alternatives. It was by refusing to commit themselves to dogmatic institutional blueprints and by preferring arrangements that would be corrigible in the light of experience and make it possible to define a path while treading it. It was consequently also by rejecting judges as the chief addressees of legal analysis, and refusing to take the question—how should judges decide cases?—as the defining problem in jurisprudence.

To achieve these goals, it was necessary to find another future for legal thought. Critical legal studies attacked, at the center of world legal culture, the jurisprudential program that was then being offered, and that continues to be proposed, as the wave of the future.

The relation of the movement to the then prevailing tendencies in jurisprudence becomes